2023 Employment Law Updates: District of Columbia

Workplaces in Washington, DC are subject to many employment laws.

Recently, the DC legislature made changes to laws regarding non-compete agreements, the DC Human Rights Act, cannabis-use for employees, and transportation benefits.

In advance of the new year, Lipp Law shares these important updates for employers to evaluate their businesses to ensure legal compliance, and for DC employees to know their legal rights.

Are Non-Competition Agreements Banned in DC?

Yes, starting October 1, 2022, DC employers have been significantly limited from entering into non-competition agreements and imposing non-competition policies for employees who make $150,000.00 or less annually (or $250,000.00 or less annually for medical specialist employees).  The annual compensation amount for those employees exempt from the ban will be adjusted on January 1, 2024, and each calendar year thereafter.  DC’s non-competition ban is not retroactive, and so, non-competition agreements predating October 1, 2022, remain enforceable.

What are the Most Recent Updates to DC’s Human Rights Act?

The DC Human Rights Act (DCHRA) prohibits discrimination based on inclusion in 18 different protected classes in the workplace by a DC-based employer, regardless of the number of employees.

Federal anti-discrimination laws, on the other hand, generally apply to employers with 15+ employees, and protect employees from discrimination based on race, color, religion, sex, national origin, and/or disability.  For the Age Discrimination in Employment Act (ADEA), which protects employees ages 40+, an employer must have 20+ employees for the ADEA to apply.

For the past year, the following expanded employment law protections have been in place in DC.

• The definition of “employee” under the DCHRA has expanded to include “unpaid intern[s]” and “individual[s] working or seeking work as an independent contractor.”
• “Homeless status” is a protected class, in addition to: age, color, disability, familial responsibilities, familial status, gender identity/expression, marital status, matriculation status, national origin, personal appearance, place of residence or business, political affiliation, race, religion, sealed eviction record, sex, sexual orientation, source of income, and status as a domestic abuse victim.
• The burden of proof for determining whether harassment occurred is expanded beyond a “severe or pervasive” standard to a “totality of the circumstances” analysis, meaning that even one instance of workplace harassment may violate the DC Human Rights Act.

Are there Employment Protections for Cannabis Users in DC?

Yes.  Soon, DC employers will not be able to terminate, refuse to hire, or otherwise adversely affect a cannabis user’s employment for recreationally using or positively testing for marijuana, under the Cannabis Employment Protections Amendment Act of 2022.  Employers, however, are not in violation of the law by taking adverse action against an employee if:

• The employee is in a “safety sensitive” position (e.g., law enforcement or operating heavy machinery);
• A federal statute, regulation, or contract requires an employer to take adverse action for cannabis use (e.g., federal government contractors and grantees);
• The employee was using cannabis at the workplace, while performing work for the employer, or during work hours; and/or
• The employee is impaired by cannabis use while working.

This law takes effect once it is included in an approved budget.  In the meantime, DC employers can evaluate which positions would be covered and whether drug testing policies will comply with this law.

Must DC Employers Provide Transportation Benefits?

Yes, employers with 20+ covered employees that offer free or subsidized parking for employees must comply with DC’s Parking Cashout Law by:

• Offering to employees a “Clean Air Transportation Benefit,” which could include free transportation to work in a commuter highway vehicle that seats 6 or more passengers, transit passes for mass transit (e.g., Metro, Amtrak, etc.), or reimbursements for bicycle use;
• Paying to DC a $100 fee per employee who is offered free or subsidized parking benefits; or
• Developing a Transportation Demand Management plan, which would outline the employer’s reduction of employee transportation by certain percentages per year until 25-percent or less of employees commute to work by car.

Starting January 15, 2023, and every other year thereafter, DC employers with 20+ covered employees are required to submit reports to the District Department of Transportation, regardless of whether they offer parking benefits to employees, to demonstrate whether they are compliant with or exempt from the DC Parking Cashout Law.  “Covered employees” are those who work in the District for at least 50% of their working time.

If you are a DC employer or a DC employee needing assistance with DC employment law issues, Lipp Law can help. Contact Lipp Law today to ensure legal compliance with DC employment laws.